The First Plaintiff
Balkgo’s Construction CC together with one of its members namely
Moto-Koa Nat Kgobe instituted action against
The City of Tshwane
Metropolitan Municipality as First Defendant and its Chief Executive
Officer as Second Defendant for payment
in the amount of R1 022
677.80. The basis of this claim is for contractual duties which the
Plaintiffs performed and for which
they alleged were not paid. The
Third Defendant is one Gert Pieterse.

BACKGROUND

The predecessor of The
City of Tshwane Metropolitan Municipality in the Temba Region was
the Greater Temba Representative Council.
Tenders were invited to
build houses for the people in the Temba Region. It is common cause
that one of the tenders was awarded
to Balkgo’s Construction CC
(First Plaintiff). First Plaintiff was involved in a joint venture
with Balemi Construction. They
were one of the smaller contractors
who were building houses in that area.

There
was a process of payment in place, namely that upon completion of
certain phases in performance of the contract, a certificate
was
completed and presented for payment.

It is
clear from the evidence of Mr
Maree
and Mrs
Modise
who testified on behalf of the First and Second Defendants, that
certificates were presented by and on behalf of the First Plaintiff
for payment. The following cheques were issued in the name of first
Plaintiff:-

CHEQUE
NO.

NAME

AMOUNT

DATE
RECEIVED

532

Balkgo’s

R135
531-28

22/05/1998

556

Balkgo’s

R285
022-13

17/06/1998

718

Balkgo’s

R
211 429-85

12/08/1998

762

Balkgo’s

R
110 525-37

09/09/1998

920

Balkgo’s

R
130 180-85

21/10/1998

2235

Balkgo’s

R
101 210-25

03/12/1998

2287

Balkgo’s

R
48 796-10

26/01/1999

5090

Balkgo’s

R
60 547-54

11/02/2000

TOTAL

R1
083 243-37

It
is not in dispute that the two last cheques that were issued in the
amounts of R48 796-10 and R60 547-54 were indeed received
by or on
behalf of First Plaintiff.

What
is in dispute is whether payment was made by First Defendant to
First Plaintiff for the first six amounts listed above, and
whether
the Third Defendant M. Mr Gert Pieterse, was authorized to accept
cheques on behalf of First Plaintiff and whether he did
so with the
knowledge of First Plaintiff’s members.

I
will deal in seratium
with these two issues.

Was payment made by First Defendant to First Plaintiff?

It is abundantly clear from the evidence of Mrs Modise that
the cheques listed as 1 to 6 above were indeed issued in the name of
First Plaintiff. Her evidence is corroborated by documentary
proof
that the said six cheques were deposited or changed at the bank and
were indeed honoured by the bank.

There is also documentary evidence to proof that most of these
cheques were collected by and deposited or changed by Third
Defendant.

It appears on the face of it that payment was indeed affected by
First Defendant in favour of First Plaintiff.

Mrs Janse van Niewenhuizen, who appeared on behalf of the
Plaintiffs’ submitted that the fact that First Defendant issued
these
cheques in the name of First Plaintiff does not necessarily
mean that payments to the First Plaintiff has been effected. This
submission is based on the premises that Third Defendant, who
collected these cheques were not authorized to collect it on behalf
of First Plaintiff. This would mean that despite the fact that
these cheques were issued in the name of the First Plaintiff it
landed in the hands of another person who either banked or changed
it and effectively meant that First Plaintiff was not paid for
the
work done.

First Defendant, so it is submitted, is therefore not exonerated
from his liability to pay First Plaintiff because First Defendant
effected payment to a “wrong” person.

In this regard I am referred to the case of Bonwer NO v Saambou
Bank Bpk. 1993(4) SA 492 (T), which I will deal with later in
this judgment.

Was Third Defendant Mr Gert Pieterse, authorized to accept these
cheques for and on behalf of First Plaintiff and was he in
accepting these cheques doing it with the knowledge of the
members of First Plaintiff?

There is undisputed evidence
before me that Gert Pieterse, who also happen to be an “agent”
for First Defendant, signed for
receipt of the First six cheques
listed above. It is clear from the documentary evidence before me
that he either deposited the
money into his own account or in some
instance that he cashed some of these cheques.

In deciding the issue as to whether Gert Pieterse (Third Defendant)

was authorised or not to accept these cheques for and on behalf of
First Plaintiff . I must take into account what is contained
in
Exhibit “B” and Exhibit “E” respectively.

Exhibit “B” is a letter on the letterhead of First Plaintiff
addressed to

Mr Maree the first witness, who testified on behalf of the
First and Second Defendants. This letter is written by Thabo
Phillip Baloyi, who together with Mothokoa Nathaniel (Nat) Kgobe
are the registered members of First Plaintiff as proven by Exhibit
“D”.

In the second last paragraphs on the first page of Exhibit “B”,
the following is stated:-

“ I agree with Ben that I will pay him his R40 000.00 back at the
end of the project by the time we would be sharing commission,
as
we were all members of Balkgo’s Construction CC,
Ben, Gert, Nat and I.”
[my underlining]

It was established
through cross-examination that the Ben that is referred to in the
letter is Ben Pieterse, the brother to Gert
Pieterse the Third
Defendant. The Gert that is referred to in the letter is Gert
Pieterse, the Third Defendant. The Nat that
is referred to is
Nathaniel Mothokoa Kgobe.

It is clear from the
reading of this paragraph that Gert Pieterse (Third Defendant was
regarded by the two registered members of
the First Plaintiff (Mr
Mothokoa Kgobe) as being a member of First Plaintiff.

In an affidavit made by
Mothokoa
Nathaniel Kgobe
to a member of the South African Police Services and which was handed
in as Exhibit “E”, the following is stated under oath in
paragraphs 5, and 8 thereof:-

.....................

It is clear from Exhibit
“E” that:-

Gert
and Ben Pieterse were co-opted as members of First Plaintiff

Gert
knew that a bank account could not at that stage be opened in the
name of the First Plaintiff;

Gert
“would keep the money safe” until a bank account was opened in
the name of the First Plaintiff;

After
the opening of a bank account in the name of First Plaintiff, “all
the money which were left after the expenses were paid
would have
been paid into this account...”

It is indeed clear that Gert Pieterse was authorized by virtue of
being either a member or so-called silent partner of First Plaintiff
to accept and receive payment on behalf of First Plaintiff.

It is furthermore clear from the affidavit of Kgobe (Exhibit
“E”) that it was agreed upon that Gert Pieterse would keep the
money of First Plaintiff “safe” until a bank account
is opened in
the name of First Plaintiff.

The money referred to
must have included the six cheques referred to above seeing that his
was the first and maybe the only project
in which Gert Pieterse was
involved with the other members of First Plaintiff.

Did Gert Pieterse
accept these cheques with the knowledge of the other members of
First Plaintiff?

From the reading of
Exhibit “E”, it is perfectly clear that the other members of
First Plaintiff. (Mr Baloyi and Mr Kgobe)
must have been aware of
the fact that Gert Pieterse would not only collect the payments for
and on behalf of First Plaintiff but
that he would also “keep is
safe”.

To argue that they
were not aware of the fact that he collected the cheques and kept
the money safe is ridiculous. It was agreed
that Gert Pieterse
would, after the opening of a bank account in the name of the First
Plaintiff, transfer the money which was
lest “after the
expenses were paid” into this account. The question arises as
to how would Gert Pieterse transfer the money into the bank account
that had to be
opened in the name of First Plaintiff if he was not
authorised to collect and accept the money for an on behalf of First
Plaintiff?

Furthermore, how would
it be agreed upon that the balance of the money (after expenses were
paid) be transferred into this account
of First Plaintiff if Gert
Pieterse was not authorised to collect the money (in the form of a
cheque), kept it safe and pay expenses?

The only conclusion
that I come to under these circumstances is that Gert Pieterse was
not only authorised to collect these cheques
(money) for and on
behalf of the First Plaintiff but he did so with the full knowledge
of Mr Kgobe and Mr Baloyi, the other member
of First Plaintiff.

Mr Phillip Baloyi,
also conceeded whilst testifying that certificates for payment for
work done were submitted every fortnightly. These certificates
were
paid and some of the money was utilized in the building project and
some to pay the employees salaries. This corroborates
what is
stated under oath in Exhibit “E” by Mr Kgobe.

I had the opportunity
to read and reflect on the case of Bouwer NOsupra.

This case is not at
all on all four with the present matter as submitted. Save to state
that if there was evidence placed before
me to proof that Gert
Pieterse as one of the Creditors of First Plaintiff was erroneously
paid by First Defendant, abovementioned
case would have been
relevant. The difference between this case and the Bouwer - case
is essentially that in the present matter Gert Pieterse was a
member or silent partner of First Plaintiff and was authorised to
receive payment for and on behalf of the First Plaintiff and to deal
with the money of First Plaintiff until a bank account was
opened in
the name of the First Plaintiff whereafter the balance of the money
would have been transferred to such an account.

CONCLUSION

It is particularly clear that First Defendant did pay First
Plaintiff in terms of their contract for the word done. Payments
were received by Gert Pieterse who was authorised to receive such
payments for and on behalf of First Plaintiff. First Defendant
therefore fulfilled its obligation in terms of the contract and
should therefore be exonerated from paying twice. Plaintiffs’s
claim must therefor be dismissed.

COSTS

Mr Barnard who appeared on behalf of the First and Second
Defendant submitted that a punitive costs order should be made
against the Plaintiffs.

He advanced a reason
for his submission the fact that the Plaintiff’s did not discover
exhibits “B” and “E” with the result
that First and Second
Defendant went to great lengths in order to obtain these exhibits.
These exhibits do form the basis of this
action and Plaintiffs knew
very well that if they discovered these exhibits their claim would
be without any merit.

I am in full agreement
with these submissions made by Mr Barnard. Not only is it essential
for a litigant to discover all the relevant
and important
documentation but also to take the court in its confidence and be
honest and open with the court.

The fact that these
important documents were not discovered and that it was only
revealed to the court by the First and Second Defendant
through
cross-examination of the witnesses who testified for and on behalf
of the Plaintiffs clearly